Citation Nr: 9825086
Decision Date: 08/20/98 Archive Date: 07/27/01
DOCKET NO. 92-05 220 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona
THE ISSUES
Entitlement to service connection for defective hearing and
punctured right eardrum residuals.
ATTORNEY FOR THE BOARD
M. E. Larkin, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1946 to May
1950.
This matter was returned to the Board of Veterans' Appeals
(Board) as the result of a decision of the United States
Court of Veterans Appeals (Court) ([citation redacted])
which vacated a February 1993 Board decision in its entirety
and noted that the claim of service connection for a
punctured right eardrum warranted further development.
The Board remanded the case in January 1997 for further
development as directed by the July 1996 Court order.
In the January 1997 remand, the Board noted that the veteran
had been represented before the Court by a private attorney
who had declined to represent him before VA. In October 1996
letter from the Board, the veteran was informed that if he
wised to be represented, he could contact the RO and request
information on obtaining representation. At present, the
veteran is unrepresented.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is suffering the claimed
conditions as a result of service. He maintains that service
medical records are in error in that they did not reflect the
circumstances surrounding his November 1946 hospitalization.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
evidence sufficient to justify a belief by a fair and
impartial individual that he has presented well-grounded
claims of service connection.
FINDINGS OF FACT
No competent medical evidence has been presented to show that
the veteran presently has a hearing disability or right
eardrum disability due to disease or injury which was
incurred in or aggravated by service.
CONCLUSION OF LAW
Well-grounded claims of service connection for defective
hearing and punctured right eardrum residuals have not been
presented. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107, 7104 (West
1991 & Supp. 1998); 38 C.F.R. §§ 3.102, 3.303 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
A careful review of service medical records reveals that the
induction physical examination noted 15/15 hearing along with
"normal" conditions, which included the eardrum, in both
ears. In November 1946, the veteran was hospitalized for
otitis media, acute. He was reported to have had an earache
in the right ear for four days, with a yellowish discharge
from the ear, a red, swollen ear canal and a red, non-bulging
eardrum. Five days later, he was noted to be asymptomatic,
without a fever, with the swelling subsided, and a normal
eardrum The remainder of the service medical records are
silent for complaints or findings referable to the ears.
The report of the separation physical examination revealed no
perforation in either eardrum. The veteran's hearing tested
at 15/15 in both spoken and whispered voice measurements.
The veteran's hospitalization for otitis media was noted, but
there were no other comments regarding the condition of his
ears at the time of separation.
The findings of a May 1991 private audiological examination
were interpreted as reporting pure tone air conduction
thresholds as 0, 15, 10, 30, 35 and 40 decibels in the right
ear at 250, 500, 1000, 2000, 3000 and 4000 hertz,
respectively. Like measurements of the left ear were 0, 0,
15, 15, 10 and 30 decibels. [citation redacted]. There were no remarks associated with that report, nor was there any indication as to whether the right eardrum was punctured or whole.
In a September 1991 rating action, the RO denied the
veteran's claims of service connection for hearing loss in
the right ear and a punctured right ear drum. The veteran
appealed that denial to the Board.
In his notice of disagreement (NOD), received in September
1991, the veteran claimed that the ear infection treated
during service was the result of injuries sustained after
jumping into a pool from a twenty-foot platform during
training. He reported that, when he tried to get out of the
water, he lost his equilibrium and fell to the floor. He
stated that he was taken to the hospital where he was told
that he had suffered a perforated eardrum and an ear
infection.
In a statement submitted in February 1992, the veteran
repeated his description of the injury in service and stated
that Navy physicians had told him that he had a "crooked
canal" and it was hard to see anything. The veteran further
reported that he had continued to experience problems with
his right ear for the remainder of service, particularly when
having to dive deep into water or when flying and that he had
experienced similar problems after service. The veteran
noted that service medical records did not show a punctured
ear drum and indicated that it would be impossible for him to
obtain affidavits and medical records from a period of over
forty years ago in civilian life as he was no longer in
contact with those treatment providers. He further indicated
that he had been told by doctors "throughout the years"
that he had a lot of scar tissue in his right ear, indicating
a bad injury.
In a February 1993 decision, the Board determined that the
veteran had submitted well-grounded claims of service
connection and denied the claims on the merits. The veteran
appealed that denial to the Court.
In the July 1996 decision, the Court found that the veteran
had not submitted well-grounded claims of service connection
and vacated the Board decision in its entirety. Regarding
the claim for right ear hearing loss, the Court noted that,
although there was evidence that the veteran did have some
hearing loss, there was no competent medical evidence of
causation.
With respect to the claim of a punctured right eardrum, the
Court commented that there was no medical evidence of record
establishing that the veteran's eardrum had been punctured.
The Court held that, while there was no duty to assist the
veteran in procuring those records and affidavits which he
had indicated would be "impossible" to obtain, there were
additional records which could serve to make his claim
plausible. The veteran had informed VA that he had been told
by doctors over the years that he had a lot of scar tissue in
his right ear indicating that he had suffered a bad injury.
As such evidence could serve to demonstrate present residuals
of a punctured eardrum and link them to service, the Court
found that VA had a duty to inform the veteran that such
information would be necessary in making his claim for
service connection well grounded. 38 U.S.C.A. § 5103(a)
(1991 & Supp. 1998); Robinette v. Brown, 8 Vet. App. 69
(1995).
In January 1997, the Board remanded the claims pursuant to
the Court order, particularly to fulfill the duty to assist
under 38 U.S.C.A. § 5103 as it pertains to the veteran's
application for compensation for disability due to a
punctured right eardrum. The Board observed that the Court
had found that lay evidence could not satisfy the requirement
of medical evidence of the existence of current, right
eardrum-related disability and its nexus to service. The
veteran had stated that he had been told by doctors over the
years that he had scar tissue in his right ear, indicative of
a bad injury. The case was remanded in order to inform the
veteran that medical evidence indicating that he had suffered
a bad injury resulting in a punctured right eardrum could
serve to make his right eardrum disability claim plausible.
In addition, the RO was to assist the veteran in obtaining
that evidence, if possible.
Appellate review of the claim of service connection for
defective hearing was stayed pending the remand action.
In February 1997, the veteran submitted VA Form 21-4142
providing information regarding medical treatment received
for the claimed punctured right eardrum The RO subsequently
contacted those treatment providers identified by the veteran
and associated any records received with the claims file. In
May 1997, the veteran submitted a statement that he believed
three physicians who had treated him during the 1950's and
1960's were likely deceased.
The private medical records include a March 1975 chart
extract which noted that the veteran had a right ear
"lesion" (peeling) which was reportedly cleared by June
1975.
A medical history reported in August 1983 noted that the
veteran had decreased hearing and a right "punctured"[sic].
In a January 1991 letter to the veteran's treating physician,
an otolaryngologist who had treated the veteran for epistaxis
reported that on physical examination, both tympanic
membranes were slightly scarred, but were in good position.
VA outpatient treatment reports include a February 1993
audiological consultation noting the veteran's complaints of
constant tinnitus in the left hear and hearing loss in both
ears. It was further noted that the veteran had suffered a
perforated right tympanic membrane in service. Audiological
examination reported pure tone air conduction thresholds as
15, 25, 15, 25, 40 and 25 decibels in the right ear at 250,
500, 1000, 2000, 3000 and 4000 hertz, respectively. The
assessment was that the veteran had mild low frequency
sloping to moderate to moderately severe high frequency loss,
both ears, mixed loss right ear and sensorineural loss, left
ear. Tympanogram right ear was interpreted as showing
extremely high compliance to the 660 Hz "B" and "C."
Trackings were considered to be the type usually seen with
disarticulation of the ossicular chain.
In a March 1993 chart extract, the report of the February
1993 evaluation was noted. The examiner noted the veteran's
history of trauma to the right ear in 1946 and that the
veteran had been told he had a "bad" perforation. The
physical examination revealed a healed perforation in the
right ear. The examiner doubted the presence of ossicular
disarticulation. The veteran was approved for hearing aid
evaluation.
II. Analysis
As noted by the Court in the July 1996 decision and
reiterated by the Board in the January 1997 remand, the
threshold question to be answered in the veteran's appeal is
whether he has presented evidence of well-grounded claims.
If not, his application for service connection must fail, and
there is no further duty to assist him in the development of
his claims. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997);
Murphy v. Derwinski, 1 Vet. App. 78 (1990).
Although a claim need not be conclusive, it must be
accompanied by supporting evidence in order to be considered
well grounded; an allegation is not enough. Tirpak v.
Derwinski, 2 Vet. App. 609 (1992). The Court has outlined a
three prong test which establishes whether a claim is well
grounded: there must be competent evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995).
The evidentiary assertions by the veteran must be accepted as
true for purposes of determining whether the claim is well
grounded, except where the claim is beyond the competence of
the person making the assertion. King v. Brown, 5 Vet. App.
19 (1993). When the issue involves a medical question of
diagnosis or causation, competent medical evidence is
required. Grottveit v. Brown, 5 Vet. App. 91 (1993).
Statements and testimony from lay witnesses or the veteran in
this regard are not sufficient to establish a plausible claim
as they are not competent to offer medical opinions.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The veteran contends that he suffered a punctured right
eardrum in service and that his currently demonstrated
hearing loss is related to that period of military service.
In this regard, such assertions regarding questions of
medical diagnosis and causation are beyond the veteran's
competence (see King, supra), and the Board must look to
other evidence of record to determine whether he has
presented well-grounded claims of service connection.
When the Court reviewed the veteran's appeal it observed that
there was no medical evidence of record establishing that the
veteran's eardrum had been punctured. The case was remanded
to attempt to obtain specific evidence identified by the
veteran; that is, evidence that he had been told by
physicians that he had scar tissue in the right ear,
considered indicative of a bad injury.
Pursuant to the Court order and Board remand, the RO
attempted to obtain records from all identified treatment
sources. The medical records associated with the claims file
include findings of a "slightly scarred" right tympanic
membrane or a right healed perforation and a right ear
hearing loss. The Board notes, however, that the recently
submitted evidence does not include any medical opinion
relating the present findings to any disease or injury in
service.
The veteran had stated that he had been told by physicians
that the presence of scar tissue in the right ear was
indicative of a bad injury. As noted by the Court, a
statement about what a doctor told a lay claimant does not
constitute the required medical evidence for a well-grounded
claim. (See [citation redacted], citing Robinette, supra). The
evidence obtained subsequent to the Court decision and Board
remand shows the presence of scarring, but none of the
records included an opinion as to whether that finding was
indicative of a bad injury. No competent evidence has been
submitted to show the source of the healed perforation being
due to disease or injury which was incurred in or aggravated
by service; nor has any competent evidence been submitted to
relate any currently demonstrated hearing loss to disease or
injury in service.
While the VA outpatient treatment reports include the
veteran's reported history of ear trauma, including a
perforated right eardrum, during service, these statements
are mere recitations of what the veteran told the examiners.
There is no indication in these reports that any examiner had
incorporated the veteran's stated history into a medical
conclusion regarding etiology of a punctured right eardrum or
right hearing loss. LeShore v. Brown, 8 Vet. App. 406
(1995). The statements in the case at hand are similar to
those made in LeShore. There, the references linking
disability to military service were made without
corroboration in the record and were merely a restatement or
recording for treatment purposes of what the veteran had
said. Therefore, it was determined in that case that,
because the veteran himself was not shown to be competent to
diagnose disability or render an opinion as to medical
etiology, the consequent medical opinion was of no probative
value. Consequently, whether articulated as contentions made
on appeal or as a statement of medical history made to a
physician, the veteran's statements do not equate with
competent evidence for the purpose of making his claim well
grounded. These records simply are not probative of a nexus
between current disability and service.
The evidentiary record remains essentially as it was when the
Court reviewed the veteran's appeal in July 1996 in that
there is still no medical evidence that the veteran suffered
a bad injury resulting in a punctured right eardrum during
his period of active service. As such, no competent evidence
has been presented to demonstrate a nexus between the
currently demonstrated scarred right tympanic membrane or
related disability or any current hearing disability and a
disease or injury which was incurred in or aggravated by
service. Hence, the Board must conclude that the veteran has
not met his burden of submitting well-grounded claims of
service connection. See Caluza, supra.
As noted in the Court's July 1996 decision, VA's duty to
assist a claimant prior to the submission of a well-grounded
claim depends on the particular facts of the case and the
extent to which the Secretary has advised the claimant of the
evidence necessary to be submitted with a VA benefits claim.
See Robinette, supra. In this instance, the Board remanded
the case in order to inform the veteran of the need to submit
medical evidence referred to by him and to assist him in
obtaining those medical records. As the foregoing discussion
explains that a well-grounded claim requires competent
evidence showing that the veteran is suffering from a
disability which is related to his military service, the
Board views its discussion as sufficient to inform the
veteran of the elements necessary to complete his application
for a claim for service connection. Id.
Finally, the Board has considered the "benefit of the
doubt" doctrine; however, as the veteran has not submitted
well-grounded claims, a weighing of the merits of the claims
is not warranted and the benefit of the doubt doctrine is not
for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
As well-grounded claims of service connection for defective
hearing and a punctured right eardrum residuals have not been
presented, the appeal is denied.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.